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United Kingdom Employment Appeal Tribunal


You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Loganathan v. Samsung Electornics Research Institute [1999] UKEAT 832_98_0411 (4 November 1999)
URL: http://www.bailii.org/uk/cases/UKEAT/1999/832_98_0411.html
Cite as: [1999] UKEAT 832_98_411, [1999] UKEAT 832_98_0411

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BAILII case number: [1999] UKEAT 832_98_0411
Appeal No. EAT/832/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
             At the Tribunal
             On 4 November 1999

Before

HIS HONOUR JUDGE PETER CLARK

MISS A MACKIE OBE

MR G H WRIGHT MBE



MR N LOGANATHAN APPELLANT

SAMSUNG ELECTORNICS RESEARCH INSTITUTE RESPONDENT


Transcript of Proceedings

FULL HEARING

Revised

© Copyright 1999


    APPEARANCES

     

    For the Appellant NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT
    For the Respondent MR M TRAFFORD
    (of Counsel)
    Instructed by
    Messrs Baker & McKenzie
    Solicitors
    100 New Bridge Street
    London
    EC4V 6JA
       


     

    JUDGE PETER CLARK: The Appellant, Mr Loganathan, was employed by the Respondent, Samsung Electronics Research Institute as an R F Development Engineer from the 14th February 1997 until his summary dismissal on the 4th September 1997 for alleged gross misconduct.

  1. Not having completed two years qualifying service for the purposes of unfair dismissal protection, he complained of wrongful dismissal at common law to an Employment Tribunal by an originating application presented on the 3rd December 1997. That claim was resisted.
  2. The complaint came on for hearing before a Chairman, Mr Rideout, sitting alone at London South on the 6th April 1998. The Appellant appeared in person, the Respondent was represented by its Human Resources Manager, Mr Mulville. In a decision with extended reasons promulgated on the 23rd April 1998, the Chairman made the following material findings
  3. (i) A fellow employee Ms Adilovic, a native of the former Yugoslavia, was pursuing an immigration application to the Home Office.

    (ii) Ms Adilovic's solicitor, acting on her behalf in that matter, informed the Respondent that the Home Office had notified him that it had received a fax from the Respondent's offices relating to her and disclosing facts about her conduct which could be damaging to her application.

    (iii) As a result an investigation was set in train. The Respondent, through Mr Oakley, the group leader, established that two fax transmissions were sent to Home Office numbers from the Respondent's office machine, between 13.20 hours and 13.23 hours on the 2nd September 1997. Further, two employees, Messrs Breslin and Williams said that they saw the Appellant operating the fax machine at that time.

    (iv) The Appellant was interviewed and denied sending the fax to the Home Office. He said that he had used the machine to fax his curriculum vitae to an agent. He supplied that person's fax number but no such number was recorded on the machine fax log.

    (v) The Appellant was seen again. He asked to speak to his line manager, Mr King, following that private conversation, Mr King informed his management colleagues that the Appellant would admit faxing the Home Office about Ms Adilovic, if he could be allowed to resign. At that stage, the Appellant said that he hated Samra, (Ms Adilovic).

    (vi) The Respondent decided to summarily dismiss the Appellant and did so.

    (vii) Despite his denials in evidence, the Chairman concluded that the Appellant did send the Home Office fax concerning Ms Adilovic.

  4. Based on those findings, the Chairman correctly directed himself as to the distinction between the test for unfair dismissal and wrongful dismissal. In the latter case, it was necessary for the Respondent to show on the balance of probabilities as a matter of fact that the Respondent had cause to dismiss the Appellant.
  5. He found that the Respondents case was made out. The Appellant had sent the offending fax. The Respondent had complied with the contractual disciplinary procedure; under that procedure examples of gross misconduct leading to summary dismissal included
  6. "revealing confidential information relating to the company, it's business activities, products or employees, to any person, without the prior consent of the company, unless it is necessary for carrying out his/her duties".

  7. The Chairman found that by sending that fax containing confidential information about an employee, Ms Adilovic, without consent, and outside his duties, the Appellant was in breach of that rule and his summary dismissal was justified at law. The claim was dismissed.
  8. Against that decision, the Appellant appeal by notice dated 4th June 1998, to which he appended grounds of appeal which he himself drafted.
  9. The Appeal was listed for ex-parte preliminary hearing before a division of the Employment Appeal Tribunal presided over by Judge Byrt QC sitting on the 4th November 1998. On that occasion, the Appellant had the advantage of representation by Counsel, Mr Dijen Basu, appearing under the ELAAS pro bono scheme. Counsel raised a number of points of appeal, not foreshadowed in the Appellant's original grounds, which persuaded Judge Bryt's tribunal to allow the matter to proceed to a full inter partes hearing. Leave was granted to the Appellant to amend his grounds of appeal to articulate the points taken on his behalf by Mr Basu. Those amended grounds are before us.
  10. The full hearing of the Appeal was originally listed before a division presided over by Mr Justice Lindsay sitting on 18 May 1999. We are told by Mr Trafford that prior to that date, the Appellant applied for an adjournment of that hearing. That application was opposed and the Registrar refused the application. In the event, on that day, the Respondent appeared by counsel and solicitor, but the Appellant did not attend and gave no explanation for his failure to attend.
  11. In these circumstances, the appeal was adjourned generally with liberty to restore. A copy of the Employment Appeal Tribunal's order of that date was sent to the Appellant under cover of a letter of even date, in which the Appellant was informed that if he failed to attend the restored hearing, his appeal may be dismissed without further ado.
  12. Notice of this hearing was sent to the Appellant on the 11th August 1999. There has been no response from him since that date and again, he does not appear before us today and no explanation for his non-appearance has been tendered. In these circumstances, Mr Trafford applies to have the appeal dismissed without more.
  13. We have considered that application, but out of deference to the points raised at the Preliminary Hearing which seemed to the division then sitting to be arguable and having received the Respondents submissions in reply, we think it right to adjudicate on the appeal on its merits.
  14. We shall consider the points raised in the amended grounds of appeal in turn.
  15. (i) It is said that the Chairman erred in failing to consider whether or not the contents of the fax which the Appellant was alleged to have to sent to the Home Office were true in whole or in part. Our first observation is that there is no question of it simply being alleged that the Appellant sent the relevant fax, the Chairman found on compelling direct evidence that he did in fact send it. Secondly, the truth or otherwise of the contents is nothing to the point. The question is whether for the purposes of the contractual disciplinary rule, the Appellant revealed confidential information relating to an employee without consent and outside the course of his duties. The Chairman found that he did and on the evidence was entitled to reach that finding. Thirdly, and in any event, there was evidence from the Appellant's own admission at the final disciplinary hearing that he hated Ms Adilovic; hence the Respondent's conclusion that the fax was sent maliciously, that is, motivated by spite.
    (ii) We can take the next three grounds of appeal together. In our judgement, the Chairman was entitled to conclude on the facts that the Appellant was in breach of the relevant disciplinary rule and that such breach warranted summary dismissal at common law.
    (iii) Finally, a point is taken on the constitution of the employment tribunal. It is said that the Chairman ought not to have sat alone to hear this case. The power enabling a Chairman to sit alone to hear a complaint of wrong dismissal is contained in section 4(1)(a) (2) & 3 (d) of the Employment Tribunals Act 1996, subject to section 4(5) of the act. In essence, a Chairman sitting alone may hear a complaint of wrongful dismissal, subject to regard being had to the factors set out in section 4(5).

  16. In Sogbetun v London Borough of Hackney (1998) IRLR 676, a division of the Employment Appeal Tribunal presided over by Mr Justice Morison held that for a Chairman to hear the complaint of unfair dismissal without lay members was a perverse exercise of his discretion, notwithstanding that both parties had given their written consent to his hearing the case sitting alone.
  17. We accept Mr Trafford's submission that it could not be correct to go so far in this case, where the claim was one of wrongful dismissal, a cause of action, which, until the 1994 extension of jurisdiction order, would have been heard in the County Court by a judge sitting alone.
  18. Whilst the Industrial experience of lay members cannot be underestimated, particularly in cases of unfair dismissal where questions of reasonableness and industrial practice will often arise, we cannot say that in the circumstances of this case the Chairman was bound to exercise his discretion in favour of sitting with lay members. In these circumstances, we have concluded that this Appeal fails on its merits. It is dismissed.
  19. Mr Trafford makes application on behalf of the Respondent for the costs incurred in this Appeal. The relevant provision in the Employment Appeal Tribunal Rules 1993, is Rule 34(1) which provides
  20. "Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by the other party in connection with the proceedings".

    Rule 34(2) gives this Tribunal discretion as to whether to assess any costs ordered to be paid or to refer the matter to the taxing officer a taxation.

  21. Mr Trafford submits that here the Appellant has conducted these proceedings unreasonably, not least because having had his application for an adjournment of the hearing fixed for the 18th May refused, he then simply did not attend. Therefore, that hearing was aborted.
  22. Today, again he does not attend and in these circumstances Mr Trafford submits that at the very least, the Respondent should have the taxed costs of those two wasted hearings. He has given us an estimate of costs in the total sum of £3,500 and submits that if an order for assessed costs is to be made then it may be appropriate to order the sum of £2,000. We bear in mind that there is no evidence before us as to the Appellant's means, he not having chosen to attend. However, we see that when employed by the Respondent, he was in receipt of a salary of £22,500 per annum gross, £15,600 net and we infer that as a skilled worker he is now in equivalent employment elsewhere. We have no hesitation in finding that the Appellant's conduct in this Appeal has been unreasonable to this extent, there have been two hearings of the full appeal when only one was necessary. Although he failed to attend on both occasions, we think having been given leave to proceed to a full hearing, he was entitled to pursue his appeal at one of those hearings.
  23. In those circumstances, we think the right approach is to order costs against the Appellant in relation to the one aborted hearing in this Appeal. Doing the best we can on the material available to us we think that the proper order for costs is an order for assessed costs in the sum of £1,000 in favour of the Respondent and we so order.


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URL: http://www.bailii.org/uk/cases/UKEAT/1999/832_98_0411.html